State v. Kevin Drown

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Reporter, Supreme Court of New Hampshire, One Charles
Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors may be
reported by E-mail at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court’s home page is:
http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Grafton
No. 2017-0030
THE STATE OF NEW HAMPSHIRE
v.
KEVIN DROWN
Argued: December 6, 2017
Opinion Issued: June 5, 2018
Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.
HICKS, J. Following a jury trial, the defendant, Kevin Drown, was
convicted on three counts of aggravated felonious sexual assault, see RSA 632-
A:2 (1988), and one count of felonious sexual assault, see RSA 632-A:3 (1988).
On appeal, he argues that the Trial Court (Bornstein, J.) erred by permitting
the prosecutor to: (1) argue that it was difficult for the victim to testify, and
because she did so, she must be credible; (2) ask the defendant for his opinion
about the victim’s credibility; and (3) argue that the defendant’s opinions about
the victim’s credibility were inculpatory and contradicted his counsel’s
argument. He requests that, to the extent that we conclude that his arguments
have not been preserved for appellate review, we consider them under our plain
error rule. See Sup. Ct. R. 16-A. We affirm.
The jury heard the following evidence. The defendant was charged with
sexually assaulting the victim on multiple occasions between August 1988 and
August 1990 when she was under the age of thirteen. At the time of the
alleged assaults, the defendant’s family and the victim’s family lived in the
same apartment building.
Detective Fiske testified that she contacted the victim in 2014 after
learning information that led her to suspect that the victim might have been
sexually assaulted by the defendant. When asked, the victim confirmed Fiske’s
suspicion. Fiske asked her whether she would be willing to be interviewed.
Although she did not initially agree to an interview, the victim eventually did
when Fiske telephoned again a week later. Following Fiske’s testimony, the
trial judge instructed the jury that her testimony could be considered “only for
the purpose of providing background of the investigation. You may consider
the fact that the conversation occurred, but the content of that conversation
should not be considered by you for the truth of the words spoken during the
conversation.”
The victim was the next witness. She testified that, when she was seven
years old, the defendant engaged in an escalating series of sexual assaults
against her over the course of several visits to his apartment, culminating with
him inserting the handle of a hairbrush into her vagina on two separate
occasions. Each assault occurred when they were alone inside one of the
apartment’s bedrooms. The victim notified her mother of the assaults at one
point, but her mother took no action and told her not to tell anyone.
A few months after the defendant assaulted her for the final time, the
victim and her family moved to a new residence. When she was a teenager, the
victim told her sister that she had been sexually assaulted. Several years later,
she also disclosed to her future spouse that she had been sexually assaulted
by the defendant. The victim’s sister and husband also testified at trial. They
each confirmed that the victim had disclosed to them years earlier that she had
been sexually assaulted.
After the State rested, the defendant took the stand and denied that he
had sexually assaulted the victim. He explained that he had asked to meet
with Lieutenant Mitchell, one of the investigating officers, “[b]ecause I heard
these allegations through members of my family.” Mitchell conducted two
interviews with the defendant approximately one month apart; both interviews
were recorded. The State played redacted video recordings of the interviews at
trial and provided the jury with the associated transcript. During both
interviews, the defendant denied sexually assaulting the victim and asserted
that he did not know why she would make these allegations against him.
2
The jury found the defendant guilty on all four sexual assault charges.
This appeal followed.
The defendant first argues that several statements made by the
prosecutor during her closing argument were not supported by the record. He
identifies the following statements: (1) that the victim “didn’t want to come into
this courtroom and tell strangers about” the assaults; (2) that it was “really,
really, hard [for the victim] to come and tell 14 strangers about what [the
defendant] did to her”; (3) that the victim knew prior to trial that “it was going
to be really, really hard”; (4) that the victim was “embarrass[ed]” about
testifying and that she “didn’t want to say it”; and (5) that, as a result of the
trial, the victim’s husband and her sister learned the details of the assaults.
Having reviewed the record of the State’s closing argument, we have
found no objection made by defense counsel that can be construed to alert the
trial court that the cited statements were allegedly not supported by the record.
See, e.g., State v. Whittaker, 158 N.H. 762, 767 (2009) (concluding that
alternative arguments supporting claim of error are not preserved if not first
raised in trial court). Accordingly, we consider this argument under our plain
error rule. See, e.g., State v. Pinault, 168 N.H. 28, 33 (2015) (failure to raise
claim of error in timely fashion does not preclude all appellate review, but
rather confines review to plain error).
The plain error rule allows us to exercise our discretion to correct errors
not raised before the trial court. State v. Euliano, 161 N.H. 601, 605 (2011);
see Sup. Ct. R. 16-A. The rule, however, should be used sparingly, its use
limited to those circumstances in which a miscarriage of justice would
otherwise result. State v. Guay, 164 N.H. 696, 704 (2013). For us to find plain
error: (1) there must be an error; (2) the error must be plain; (3) the error must
affect substantial rights; and (4) the error must seriously affect the fairness,
integrity or public reputation of judicial proceedings. State v. Pennock, 168
N.H. 294, 310 (2015). For the following reasons, we conclude that the
defendant has failed to establish that the challenged statements constituted
error.
A prosecutor may draw reasonable inferences from the evidence
presented and has great latitude in closing argument to both summarize and
discuss the evidence and to urge the jury to draw inferences of guilt from the
evidence. State v. Cable, 168 N.H. 673, 688 (2016). The victim testified that,
although she had told her husband and sister about the assaults years earlier,
she had not disclosed the details. She also testified that, until she was
contacted by Fiske, she had not disclosed the details to anyone and had not
intended to report them to the police: “I was trying to be happy and I just put it
away.” She testified that she felt sick when first contacted by Fiske, and that
she was crying and emotional during her subsequent interview. At one point
during the victim’s testimony, the prosecutor asked permission from the court
3
to approach and told the victim: “There’s tissues up there if you need a break
or some tissues.”
Based upon the evidence in the record, we conclude that the prosecutor’s
remarks were not improper. Rather, the prosecutor was drawing inferences
from the evidence presented and the demeanor of the victim during trial, which
would have been readily apparent to the jury. See id. Accordingly, the
defendant has failed to establish that the cited statements were not supported
by the evidence.
The defendant also argues that the prosecutor’s argument was improper
because, according to the defendant, the prosecutor argued that the victim was
credible “because she chose to testify despite the difficulty and embarrassment
of doing so.” The State contends that the defendant did not make this specific
argument before the trial court and has, therefore, failed to preserve it.
During her closing, the prosecutor argued: “Why would [the victim] come
here and tell you that if it wasn’t true?” The defendant objected:
I’m going to object to the argument that she must be telling the
truth otherwise why would she have made the decision to testify
and prosecute this case? I think that that is an inappropriate
argument to make to say that she must be truthful because she’s
made the decision to do these things and I rely on the case of
Commonwealth versus [Dirgo]. It’s a Massachusetts case. It was
decided in June of this year.
See Commonwealth v. Dirgo, 52 N.E.3d 160 (Mass. 2016). When the trial court
asked for clarification, defense counsel stated: “[T]he prosecutor repeatedly
argued that the alleged victim must be telling the truth because she would not
have otherwise chosen to prosecute, testify, and be cross-examined. [The Dirgo
Court] found that such statements were inappropriate.” The trial court
overruled the objection, stating:
At least, the way it’s worded, I’m going to overrule the objection.
It’s posed in the form of a question. It’s not an affirmative -- a
statement of opinion by the prosecutor as to the credibility of the
witness or that she said telling the truth. It’s not an expression of
a personal opinion. It’s posed as the form of a rhetorical question
for the jury to draw their own inferences; saying that it does -- I
mean, ultimately, it’s the alleged victim’s credibility is the center
point of this case.
The Defense is arguing that she’s not credible and that’s a
lie. The State can carefully, albeit, but at least so far it isn’t -- the
State can address that contention and ask the jury to conclude
4
and make rational inferences about whether the alleged victim’s
testimony is truthful based on the evidence presented and the
circumstances presented overall. So the -- at least the objection to
this one statement is overruled.
Although the defendant provides additional support on appeal for his
argument, the basis for his challenge remains the same; that is, arguing that a
victim in a sexual assault case is credible because she chooses to testify
“despite the difficulty and embarrassment of doing so” constitutes
impermissible vouching for her credibility. The analysis articulated by the trial
court demonstrates that it understood and addressed the defendant’s objection
to the challenged statement. See State v. Gross-Santos, 169 N.H. 593, 598
(2017). We conclude, therefore, that the defendant’s argument is preserved
and turn to its merits.
Citing State v. Mussey, 153 N.H. 272, 277-78 (2006), the defendant
contends that an argument that asks the jury to find a victim credible because
she found it embarrassing to testify “vouches for [her] credibility” and “distracts
the jury from its primary responsibility of weighing the evidence before it.” He
asserts that this argument “elevated the credibility of sexual assault
complainants, as a group, over the credibility of other witnesses, including
defendants” and that it “encouraged the jury to act based on considerations
other than the particularized facts of the case.” (Emphasis omitted.) We are
not persuaded by this characterization of the challenged statement.
We begin by summarizing the defendant’s closing argument, which
included assertions that: (1) “the whole thing is a lie”; (2) the victim didn’t
provide details of the assaults to her husband and her sister because she
“knew it wasn’t true”; and (3) referring to the victim’s disclosures to her sister
and husband, “it was all a lie from the start.” Defense counsel made several
additional references to the victim’s lack of truthfulness, explaining to the jury
that it was not the defendant’s burden to “explain to you why [the victim] is
being untruthful.” She also argued:
Sexual assault of a young child is a horrible crime. No one in this
room would disagree with that, but what’s worse than the sexual
assault of a child is lying about it because lying about it
undermines the credibility of the true victims and also of course,
because it is devastating to the accused.
In response, the State asked the jury to consider why the victim would
lie, and, citing the details of the assaults committed with a hairbrush, stated:
“And I know you guys don’t want to hear that again; nobody wants to hear
that. [The victim] didn’t want to say it. Why? Why would she come here and
tell you that if it wasn’t true.”
5
We have previously “found no impropriety in an argument that a witness
had nothing to gain by testifying falsely where defense counsel had attacked
the witness’s credibility.” State v. Mussey, 153 N.H. 272, 279 (2006). The
challenged statement in this case is distinguishable from the prosecutor’s
argument in Mussey which, despite no supporting evidence, “effectively told the
jury that if it returned a verdict of not guilty, the police officers [who testified at
trial] would suffer detrimental consequences to their careers.” Id. at 278. In
contrast, here, the prosecutor’s question was a permissible response to defense
counsel’s closing argument. See State v. Ainsworth, 151 N.H. 691, 698 (2005).
As the United States Supreme Court has cautioned: “[P]rosecutorial comment
must be examined in context.” United States v. Robinson, 485 U.S. 25, 33
(1988). “To this end it is important that both the defendant and the prosecutor
have the opportunity to meet fairly the evidence and arguments of one
another.” Id.; see also United States v. Rodriguez, 215 F.3d 110, 123 (1st Cir.
2000) (“an argument that does no more than assert reasons why a witness
ought to be accepted as truthful by the jury is not improper witness vouching”).
For the same reason, we find the defendant’s reliance upon
Commonwealth v. Dirgo, 52 N.E.3d at 160, unpersuasive. In Dirgo, the
Massachusetts Supreme Judicial Court granted a defendant’s motion for a new
trial after concluding that “the cumulative effect of various improper
statements in the prosecutor’s [closing] argument created a substantial risk of
a miscarriage of justice.” Dirgo, 52 N.E.3d at 162. These statements included
the “prosecutor’s repeated suggestions that the complainant was credible
because of her willingness to testify and to subject herself to the scrutiny of the
jury,” which the Commonwealth conceded was improper under Massachusetts
jurisprudence. Id. at 163-64. “The prosecutor’s argument in this regard was
not a single, offhanded remark. Rather, the prosecutor established throughout
the argument an overarching theme that the complainant was credible because
of her willingness to testify.” Id. at 163.
In contrast to Massachusetts case law, as the defendant concedes, we
have never held that it is improper for a prosecutor to argue that a sexual
assault victim is credible simply because she chose to testify. Nor do the facts
of this case support the establishment of such a prohibition. The prosecutor’s
rhetorical question did not rely upon facts not in evidence, but rather asked
the jury to consider the obvious difficulty that the victim exhibited during her
testimony when describing the assaults. Given defense counsel’s emphasis
upon the victim’s credibility in her closing argument, we conclude that the trial
court did not err in overruling defense counsel’s objection.
The defendant next argues that the trial court erred “by permitting the
prosecutor to require [him] to comment on the [victim’s] credibility.”
Transcripts of the defendant’s two pretrial interviews with the police had
already been admitted into evidence when he took the stand. During the first
interview, when asked why the victim would accuse him of the assaults, the
6
defendant responded that he did not know and at one point surmised that “she
is transferring it from somebody else.” During the second interview, he
reiterated that he wasn’t denying that the victim had been sexually assaulted
but was “just saying it wasn’t [him].”
At trial, when asked about the interviews, the defendant acknowledged
being asked “several times why [the victim] would make this up now, 25 years
after it happened.” The following exchange then took place:
[Prosecutor] Do you remember what your answer was?
[Defendant] I have no idea why.
[Prosecutor] And they asked you that several times, right?
[Defendant] Absolutely.
[Prosecutor] And your answer every time was I have no idea why?
[Defendant] Yes.
[Prosecutor] They also asked you a question and you responded
about whether or not you thought [the victim] was lying.
[Defendant] Yes.
[Prosecutor] And what did you say?
[Defendant] I said I have no way of knowing if she’s lying or not
about that having been done to her. I can only attest that I did not
do anything to her.
[Prosecutor] So your testimony here today is that you said to
Lieutenant Mitchell, I have no way of telling if she’s lying or not?
[Defendant] Correct.
[Prosecutor] Your Honor, may I approach the witness?
THE COURT: You may.
....
[Prosecutor] Mr. Drown, please read line 147 and 148.
7
[Defendant] “I’m not – I’m not denying that with [the victim] at all
that she’s making it up. I’m just saying it wasn’t me. I didn’t
never -- I mean never, ah, never.”
[Prosecutor] So in that interview you said I’m not denying that with
[the victim] at all, I’m not saying she made it up, right?
[Defendant] Correct.
[Prosecutor] Okay. Do you think [the victim]’s lying now?
[Defendant] If she’s saying that I did something, she’s absolutely
wrong, yes.
[Prosecutor] Well, you saw her testimony. That’s what she said. Is
she lying?
[Defendant] She is lying.
[Prosecutor] So that passage you just read for us, an interview, you
said you’re not denying that [the victim]’s telling the truth. You
said you didn’t think she was lying and now you’re saying --
[Defendant] As far as being molested, I have no idea if she was
molested or not, but I did not do anything to her.
[Prosecutor] So you think that maybe [the victim]’s mistaken about
the person who did these things to her?
[Defendant] I have no idea, but that’s always a possibility. I don’t
know.
The prosecutor followed with several additional questions asking the defendant
whether the victim was “mistaken” about who had committed the sexual
assaults against her.
The defendant concedes that “it was permissible for the prosecutor to ask
him about his statements during the interrogation.” As we have explained, “a
recorded interview does not implicate the same concerns that underlie our
prohibition against witness testimony at trial that opines upon the credibility of
other witnesses.” State v. Willis, 165 N.H. 206, 218-19 (2013). He further
concedes that because “a defendant’s statement about whether he is aware of
any motive for the complainant to lie is relevant and carries minimal risk of
undue prejudice,” see id. at 220, the prosecutor properly explored his answers
to police questioning concerning any motive the victim may have had to accuse
him of the assaults.
8
The defendant argues, however, that the prosecutor moved into
impermissible territory when she asked him first, whether he believed that the
victim was lying in her testimony, and second, whether he believed that the
victim was mistaken in her testimony when she identified him as the
perpetrator of the assaults. Because he did not object to either line of
questioning at trial, he asks that we review this argument under our plain error
rule. See Sup. Ct. R. 16-A.
The defendant’s challenge encompasses two categories of questions: the
first asks that we find plain error when a prosecutor asks a witness whether
another witness might be mistaken in testimony; the second asks that we find
plain error when a prosecutor asks a witness whether another witness is lying.
The defendant does not cite a case, nor have we found one, in which this court
has found impropriety in asking a witness at trial whether another witness was
“mistaken” in testimony. Even if we assume that this might be objectionable,
this issue is not a matter of settled law. Cf. State v. Glidden, 122 N.H. 41, 47-
48 (1982) (trial court properly allowed State to cross-examine defendant, over
his counsel’s objection, regarding whether he “disputed” testimony of various
prosecution witnesses because such questioning did not require the defendant
to comment directly on the veracity, as opposed to the correctness, of another
witness’s testimony), cited with approval in State v. Souksamrane, 164 N.H.
425, 428 (2012). Accordingly, we decline to find error. See State v. Rawnsley,
167 N.H. 8, 12 (2014) (generally, when law is not clear at time of trial, and
remains unsettled at time of appeal, decision by trial court cannot be plain
error).
The prosecutor’s questions to the defendant asking whether the victim
had lied in her trial testimony fall into a separate category. In State v. Lopez,
156 N.H. 416, 423-24 (2007), we acknowledged a trend in our cases “toward
limiting testimony or questioning that requires a witness to opine upon the
credibility of other witnesses.” Lopez, 156 N.H. at 424. Such questioning is
objectionable because it “interferes with the jury’s obligation to determine the
credibility of witnesses, and is not probative in that it requires a witness to
testify to things outside of her or his knowledge.” Id. at 423. We then
endorsed “a broad prohibition on questions requiring a witness to comment
upon the credibility of other witnesses.” Id.; accord Guay, 164 N.H. at 704;
Souksamrane, 164 N.H. at 427-28; State v. Parker, 160 N.H. 203, 212-14
(2010). The defendant maintains, therefore, that “permitting the prosecutor to
ask these questions was error” and that the error was plain because we have
“repeatedly held that questions such as those posed here are improper.”
However, when the alleged “plain error” results from a line of questioning
at trial, the existence of plain error “does not depend solely on whether — as an
abstract matter — the lawyer’s questions or the elicited answers would have
been inadmissible if . . . objected to. Rather, any ‘plain error’ must relate to the
trial court having not taken affirmative steps to intervene in the parties’
9
litigation.” State v. Corkill, 325 P.3d 796, 801 (Or. Ct. App. 2014); see State v.
Rawnsley, 167 N.H. at 12 (“[B]ecause the defendant never objected to the
challenged testimony, and the trial court never ruled it admissible, we agree
with the defendant that ‘[t]he pertinent question is whether the trial court erred
in failing sua sponte to strike’ that testimony.”); see also United States v.
Young, 470 U.S. 1, 14 (1985) (concluding that prosecutor’s statements,
although inappropriate and amounting to error, were not “plain error”
warranting the court to overlook the absence of any objection by the defense);
United States v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008) (for admission
of evidence to constitute plain error, evidence must have been so obviously
inadmissible and prejudicial that, despite defense counsel’s failure to object,
trial court, sua sponte, should have excluded it).
The trial court did not, as the defendant contends, “permit” the
prosecutor to ask the challenged questions, nor, for that matter, did the court
“admit” his responsive testimony; rather, due to the absence of an objection, it
took no action. It is this inaction, and neither the impropriety of the questions
asked nor the testimony elicited, that provides the basis for our review. That
is, the pertinent inquiry with regard to whether a “plain error” occurred in this
case is not whether the prosecutor’s cross-examination was objectionable,
which under our current case law is undisputable, but rather whether the trial
court should have sua sponte intervened to strike the questioning at issue
and/or exclude the resulting testimony.
Although we accepted the State’s concession of error in Lopez, Lopez,
156 N.H. at 423, our holding that it is objectionable to ask a witness to opine
upon whether another is lying did not equate with the imposition of a duty on
trial courts to intervene sua sponte with regard to such questioning. Cf.
Souksamrane, 164 N.H. at 429 (directing trial court judges to sustain
objections to such questions). Indeed, “[w]e have never held that a trial court
must sua sponte strike or issue a curative instruction with respect to witness
testimony.” State v. Noucas, 165 N.H. 146, 161 (2013); accord State v.
Thomas, 168 N.H. 589, 604 (2016). Rather, we have suggested that courts
should refrain from taking such action. See State v. King, 146 N.H. 717, 722
(2001) (holding that trial court erred “when it sua sponte asserted the privilege
against self-incrimination on the witness’s behalf”); cf. State v. Washington,
693 N.W.2d 195, 205 (Minn. 2005) (“We do not agree that [a] [trial] court must,
or even should, interfere with the trial strategy of the defendant. To act sua
sponte here would risk highlighting or enforcing rights that the defendant had,
for tactical reasons, decided to waive.”); United States v. Hickman, 592 F.2d
931 (6th Cir. 1979) (concluding trial court plainly erred, in part, by interjecting
itself more than 250 times in one-day trial and, rather than waiting for
objections to be made, by “sua sponte interrupt[ing] a witness or counsel, with
the words ‘objection sustained’ and then proceed[ing] to state why the witness’
particular testimony was in some way objectionable”).
10
What is often overlooked in the rote application of the plain
error standard is that, without objection, it is almost impossible to
conclude that the [trial] court committed error at all. It is one
thing to say that evidence, if objected to, should have been
excluded; it is quite another to say that admission of evidence over
no objection is error in some abstract sense. The error in the
former circumstance is the [trial] court’s failure to sustain the
defendant’s objection; in the latter, the error is evidently the
improper infringement upon a defendant’s unwaivable right to be
tried only by admissible evidence. The problem with the second
formulation is that defense counsel can waive evidentiary
restrictions, and often has legitimate strategic reasons for doing so.
United States v. Smith, 459 F.3d 1276, 1299-1300 (11th Cir. 2006) (Tjoflat, J.,
specially concurring).
In this case, the defendant had already denied in two pretrial interviews
that he committed the charged assaults, and transcripts of those interviews
had been admitted into evidence. After the victim described the assaults to the
jury, the defendant took the stand to again deny that he was the perpetrator. If
he appeared to be a credible witness, it might well have been defense counsel’s
strategy, or the defendant’s decision, to allow him to deny each allegation as
forcefully as possible before the jury.
The prosecutor’s line of questioning could also be interpreted as an
attempt to suggest that the defendant’s failure to deny that the victim might
have been assaulted by someone else when speaking with the police might
somehow be viewed as an admission by the defendant that he had committed
the assaults. This attempted obfuscation by the prosecutor was so obviously
wrong that defense counsel could well have concluded that there was no need
to object because the jury would perceive the absurdity of what the prosecutor
was suggesting and determine that it reflected badly on the strength of the
State’s case.
We conclude that the trial court did not err in failing to sua sponte strike
the questioning at issue, or to exclude the resulting testimony. See Rawnsley,
167 N.H. at 13. In so concluding, we do not condone prosecutorial actions that
contravene our existing case law. We have frequently emphasized that the duty
of a public prosecutor is to seek justice, not merely to convict. See, e.g., State v.
Preston, 121 N.H. 147, 151 (1981); see also ABA Standards for Criminal Justice:
Prosecution and Defense Function, Standard 3-1.2 (3d ed. 1993). And we have
cautioned that failure to adhere to standards set forth in our case law may result
not only in reversal of convictions but also in disciplinary proceedings against the
offending prosecutor. Preston, 121 N.H. at 151.
11
The defendant’s final argument addresses remarks made by the
prosecutor during closing argument. He contends that the trial court erred by
permitting the prosecutor to argue that the defendant’s opinions about the
victim’s credibility “were inculpatory and contradicted his attorney’s
arguments.” The defendant maintains that it was improper for the prosecutor
to argue that the defendant was not credible “because he expressed
inconsistent opinions about whether [the victim] was lying or mistaken” and
“because his opinions about whether the [victim] was lying or mistaken differed
from the theory of [the] case presented by his attorney in opening statement
and closing argument.” He concedes that he did not object on these grounds
and asks that we find that the trial court’s failure to intervene constituted plain
error. In support, he cites the following excerpt from the State’s closing
argument:
Now the defense attorney and her client, the Defendant, seem to
disagree about what actually happened here. The defense attorney
told you [the victim]’s a liar. Everything she told you yesterday
was a lie, but Kevin Drown didn’t say that. Even this morning
when I asked him, well, is she a liar now, Kevin? You heard her
testimony yesterday. He said, well, she’s lying about me doing it to
her, but he never said it didn’t happen. And the defense attorney
said to you, well, that’s because maybe he feels some sympathy for
[the victim] and he doesn’t want to call her an outright liar. Maybe
that’s the case or maybe he knows what happened and maybe he
knows it’s not a lie.
We conclude that the trial court did not err in failing to sua sponte
interrupt the State’s closing argument. We have frequently observed that the
trial court has the advantage of observing the witnesses and jury firsthand; in
contrast, on appeal, we examine the record without benefit of these firsthand
courtroom observations. See, e.g., State v. Durgin, 165 N.H. 725, 734 (2013).
In this case, the factual statements were not inaccurate, and the State asked
the jury to draw conclusions from them. It is possible that defense counsel did
not object because she concluded that this part of the prosecutor’s argument
was nonsensical and would be seen as such by the jury, and thus undermine
the force of the message that the prosecutor was attempting to convey.
Affirmed.
LYNN, C.J., and BASSETT and HANTZ MARCONI, JJ., concurred;
DALIANIS, C.J., retired, specially assigned under RSA 490:3, concurred.
12